973.7L63   Hertz,  Emaneel 
B6HUUab       Abraham  Lincoln ♦ 

The  legal  phase of  the  "first 

American*" 


LINCOLN  ROOM 

UNIVERSITY  OF  ILLINOIS 
LIBRARY 


MEMORIAL 
the  Class  of  1901 

founded  by 

HARLAN  HOYT  HORNER 

and 

HENRIETTA  CALHOUN  HORNER 


ABRAHAM  LINCOLN 

THE  LEGAL  PHASE  OF 
THE  "FIRST  AMERICAN ' 


■By 


EMANUEL     HERTZ 


Delivered  over  WRNY,  February  12,  IQ27,  under  the  auspices  of  the 
Committee  on  Citizenship  of  the  New  York  County  Lawyers 

Association 


■Mf^TUMwwi?m^wj<r>fii'Tfs?i.tHrfTT.frg?mOTe 


Digitized  by  the  Internet  Archive 

in  2012  with  funding  from 

University  of  Illinois  Urbana-Champaign 


http://www.archive.org/details/abrahamlincolnleOOhert 


fi> 


ABRAHAM  LINCOLN,  THE  LEGAL  PHASE 
OF  THE  "FIRST  AMERICAN" 

By  EMANUEL  HERTZ 


VERYTHING  with  which  Lincoln  came  in  contact,  every- 
thing in  which  he  participated — became  ennobled  and 
sublimated  by  reason  of  such  contact  and  by  reason  of  such 
participation.  Whatever  he  touched  ripened  as  with  the  wisdom 
of  the  ages.  Given  a  Republican  State  Convention  which  was  about  to 
close  its  commonplace  session  as  have  hundreds  of  others — and  an  address 
of  Lincoln  raises  it  to  such  dizzy  heights  that  the  reporters  forget  their 
mission — the  delegates  become  electrified  and  the  whole  country  resounds 
with  reports  of  the  "lost  speech"  delivered  by  Lincoln  and  which  has  to 
this  day  become  the  classic  statement  of  the  raison  d'etre  of  the  Repub- 
lican party,  just  about  called  into  being  at  the  memorable  gathering  under 
the  oaks  in  Michigan.  There  were  joint  debates  from  time  immemorial 
— but  it  remained  for  Lincoln  to  stage  the  most  remarkable  joint  debate 
of  all  time  with  Stephen  A.  Douglas,  the  ablest  and  most  resourceful 
protagonist  of  the  opposition.  Given  a  dissolved  and  disintegrating 
Union,  foundered  upon  the  rock  of  slavery,  so  mournfully  predicted  by 
his  great  predecessor  Jefferson,  and  so  gleefully  gloated  upon  by  Alex- 
ander H.  Stephens,  the  political  philosopher  of  the  Confederacy,  and 
Lincoln  approached  the  dying  confederation  of  loosely  jointed  states — 
"the  gossamer  of  sand"  which  connected  them  having  become  just  sand 
again ;  and  like  Elijah  of  old — from  a  distance  at  first — from  Springfield 
by  voice  and  pen — and  then  like  the  prophet,  alone  with  the  widow's  son, 
breathed  into  his  nostrils  the  breath  of  life — so  at  Washington  during 
the  great  ordeal  of  four  years  he  breathed  life  into  the  dead  bones  of  the 
Union  and  demonstrated  that  these  dead  bones  could  live — and  must  live 
— ignited  the  dead  embers  of  patriotism  in  the  land  and  then,  when  his 
task  was  over,  like  Elijah,  ascended  in  the  chariot  of  fire  awaiting  him — 
summoned — who  knows — by  the  Heavenly  Father  for  other  world-tasks, 
in  other  spheres. 


787416 


In  the  processes  of  preparation  which  this  great  soul  was  subjected 
to,  he  was  trained  and  prepared  among  other  things  in  legal  reasoning, 
in  legal  tasks  of  the  most  diversified  kinds.  It  was  but  one  of  the  essen- 
tial courses  of  study,  of  experience,  even  as  was  his  legislative  training 
or  his  training  in  frequent  joint  debate — his  training  in  flatboating,  in 
surveying,  in  his  one  Congressional  term,  in  his  study  of  Euclid,  or  in 
his  intense  study  of  the  Bible,  of  the  Constitution  and  of  the  Declaration. 
All  were  indispensable  to  make  up  and  prepare  the  Lincoln  of  1861  as 
he  entered  upon  the  Presidency — the  supreme  task  and  trial  of  his  life. 
All  this  training  contributed  to  make  him  what  Bacon  calls  the  ready 
man,  for  ready  he  was  to  see  and  speak  to  Union  man  or  Southern  sym- 
pathizer, soldier  or  sailor,  general  or  admiral,  governor  or  senator,  aboli- 
tionist or  copperhead,  editor  or  preacher,  diplomat  or  foreign  minister, 
cabinet  officer  or  casual  visitor — and  they  were  legion  from  every  part 
of  the  Union  and  every  corner  of  the  world — and  he  met  all,  heard  all, 
spoke  to  all,  replied  to  every  manner  of  petition,  considered  and  teste.l 
every  manner  of  resolution  with  the  reasoning  of  Euclid,  spoke  with  the 
simplicity  of  Bunyan  and  wrote  with  a  majesty  of  diction  of  the  Bible. 

Lincoln  the  lawyer  met  the  leaders  of  the  Bar  of  Illinois  and  of 
Indiana;  he  met  some  leading  lawyers  of  his  day  during  his  all  too  short 
term  in  Congress.  The  judges  before  whom  he  appeared  joined  the 
lawyers  with  whom  he  associated  and  whom  he  met  in  his  legal  battles, 
and  as  he  had  gauged  their  minds  and  appraised  their  abilities  he  called 
them  one  by  one  to  aid  him  in  his  own  original  and  phenomenal  plan  of 
saving  the  Union.  One  by  one  he  fitted  them  into  their  various  stations 
and  places,  each  one  according  to  his  abilities,  predilections  and  achieve- 
ments. He  needed  them  all ;  he  employed  all.  He  inspired  all  with  the 
spirit  that  was  in  him — to  save  the  L^nion.  And  to  those  who  believe  that 
he  was  preordained  and  predestined  for'  his  task — the  legal  phase  of  that 
marvelous  life — was  but  a  necessary  course  of  training  for  greater  tasks 
yet  to  come. 

He  practiced  law  as  did  the  others  on  the  circuit — all  the  frontier 
life  episodes  of  the  men  and  women  who  travelled  westward  to  open  the 
great  middle  western  empire  of  the  Union  came  within  his  ken.  Their 
problems  became  his  problems.  Their  aspirations  became  his  aspirations 
and  for  the  moment  he  became  one  of  them  and  refused  other  and  more 
lucrative  employment  elsewhere.  To  be  general  counsel  for  the  New 
York  Central  Railroad  did  not  interest  him.  New  York  even  in  the 
Fifties  of  the  last  century  rather  awed  him.  The  lure  of  Springfield  and 
the  8th  Circuit  became  too  great,  so  that  even  when  the  supreme  moment 
came,  it  was  to  him  a  great  renunciation  to  leave  Springfield  and  he  would 


have  gladly  lingered  a  while  longer  in  the  place  of  his  early  struggles  and 
his  modest  triumphs.  But  the  moment  was  here  and  he  was  on  his  way 
to  Washington  for  the  great  adventure,  to  be  present  on  the  great  judg- 
ment day  when  the  Lord  of  Hosts  judged  the  nations  on  this  Continent. 
Lincoln  the  lawyer  who  laboriously  prepared  all  his  legal  documents 
in  that  wonderful  chirography  which  has  become  so  familiar  as  to  be 
recognized  by  every  school  child,  who  examined  his  witnesses,  who  tried 
his  own  cases,  who  prepared  his  own  briefs,  was  so  thoroughly  trained  in 
what  was  human,  in  law  and  lawyers,  that  he  collaborated  with  the  best 
legal  talent  of  his  day  in  preparing  those  legal  documents  which  became 
essential  to  cement  not  a  more  perfect  Union — he  was  through  with 
compromises  and  half-way  measures — but  an  indestructible  Union  of  inde- 
structible states — which  by  the  Grace  of  God  and  the  genius  of  Lincoln 
it  is  today. 

Henry  Winter  Davis,  Reverdy  Johnson,  Salmon  P.  Chase,  David 
Davis,  William  Pitt  Fessenden  and  a  host  of  other  great  lawyers  were 
on  the  stage  upon  which  the  light  of  an  entire  world  beat  its  fierce  and 
deadly  rays,  but  it  was  the  modest  country  circuit  lawyer  who  rewrote 
the  diplomatic  notes  of  the  premier  international  lawyer  of  his  generation 
and  by  a  few  well  chosen  mollifying  words  and  phrases,  saved  the  two 
Anglo-Saxon  countries  from  fratricidal  war.  It  was  this  modest  country 
lawyer  who  demonstrated  a  courage  never  manifested  before  and  never 
equalled  since,  by  impaling  a  Chief  Justice  of  the  Supreme  Court  of  the 
United  States,  a  President  of  the  United  States,  a  former  President  and 
the  leader  of  the  United  State  Senate — as  no  one  ever  did  or  could  do 
before. 

Hear   him   on   the    Dred    Scott   decision,   flaying   Roger   B.    Taney, 
Franklin  Pierce,  James  Buchanan  and  Stephen  A.  Douglas — using  their 
first  names  only  in  the  form  of  his  parable — his  deadliest  weapon : 
"My  main  object  was  to  show  so  far  as  my  humble  ability 
was  capable  of  showing  to  the  people  of  this  country,  what  I 
believe  was  the  truth — that  there  was  a  tendency,  if  not  a  con- 
spiracy, among  those  who  have  engineered  this  slavery  question 
for  the  last  four  or  five  years,  to  make  slavery  perpetual  and 
universal    in   this   nation.     .     .     I    concluded    with   this   bit   of 
comment : 

"We  cannot  absolutely  know  that  these  exact  adaptations 
are  the  result  of  pre-concert,  but  when  we  see  a  lot  of  framed 
timbers,  different  portions  of  which  we  know  have  been  gotten 
out  at  different  times  and  places,  and  by  different- workmen — 
Stephen,  Franklin,  Roger,  and  James,  for  instance;  and  when 


we  see  these  timbers  joined  together,  and  see  they  exactly  make 
the  frame  of  a  house  or  a  mill,  all  the  tenons  and  mortices 
exactly  fitting,  and  all  the  lengths  and  proportions  of  the  different 
pieces  exactly  adapted  to  their  respective  places,  and  not  a  piece 
too  many  or  too  few, — not  omitting  even  the  scaffolding, — or 
if  a  single  piece  be  lacking,  we  see  the  place  in  the  frame  exactly 
fitted  and  prepared  to  yet  bring  such  pieces  in — in  such  a  case 
we  feel  it  impossible  not  to  believe  that  Stephen  and  Franklin, 
and  Roger  and  James,  all  understood  one  another  from  the 
beginning,  and  all  worked  upon  a  common  plan  or  draft  drawn 
before  the  first  blow  was  struck." 

For   force  and   crushing   effect,   this    has   never  been   equalled   in   legal, 
political  or  polemic  literature. 

It  was  this  homely  frontier  country  lawyer  who  evolved  and  demon- 
strated the  infamy  of  secession  and  then  the  legal  status  of  the  seceded 
states,  which  had  he  lived,  he  would  have  inaugurated  and  saved  all  the 
bitterness  and  misery  and  corruption  of  Reconstruction.  It  was  this 
Springfield  lawyer — whose  largest  fee  had  been  $5,000  in  a  law  practice 
of  twenty-three  years,  who  drafted,  unaided  and  alone,  the  immortal  legal 
document — the  title  deed  of  freedom  which  released  from  bondage  four 
million  souls.  Great  corporations,  gigantic  fees,  monumental  questions  of 
sixty  years — which  employed  legal  talent  of  every  kind — how  petty,  how 
small,  how  dwarfed  they  all  appear  in  the  presence  of  this  latter-day  St. 
Louis,  doing  justice  under  a  tree,  as  it  were,  in  the  White  House,  under 
the  shades  of  the  elms — which  alone  of  all  about  him  partook  of  the 
characteristics  of  the  fundamental  of  the  eternal  in  the  patient,  sad- 
visaged  lawyer  in  the  employ  "of  the  last  great  experiment  of  the  people" 
that  their  government  may  not  perish. 

And  as  is  usual  in  all  such  cases,  during  the  millenia,  his  neighbors, 
his  associates  at  the  Bar,  with  but  very  few  exceptions,  did  not  recognize 
the  divine  spark  in  him.  They  did  not  become  aware  that  he  was  not  of 
them — they  saw,  they  heard,  occasionally  admired — more  often  criticized, 
for  he  too  had  a  goodly  number  of  Eldads  and  Maedads, — but  they  knew 
him  not.  The  assassin's  bullet,  the  chariot  of  fire,  the  indescribable 
political  diapason  with  all  the  saturnalia  of  corruption  which  followed  his 
ascension  to  Him  who  loaned  him  to  us  as  a  momentary  herald  of  peace 
and  good  will — all  were  required  to  open  men's  eyes,  to  unlock  their 
bosoms,  to  bring  forth  a  flood  of  recollections  of  Lincoln,  the  country 
lawyer  of  Springfield.  The  judge  came  forward  and  told  how  he  was 
enthralled  by  the  eloquence  of  Lincoln  in  acquitting  the  widow's  son.  The 
legal  opponent  waxed  eloquent  at  the  generosity  of  Lincoln  as  a  legal 


adversary.  The  client  became  loquacious  at  his  modesty  in  bearing,  hit 
fairness  in  charges  for  his  services,  at  the  adequacy  of  preparation  of 
causes  and  the  invaluable  service  rendered.  The  young  lawyer  came  for- 
ward to  comment  and  recount  how  he  ever  extended  a  helping  hand  to, 
and  had  a  word  of  encouragement  for  the  young  men  at  the  Bar.  The 
jurymen  gathered  to  recall  the  perfect  control  he  wielded  over  them  in 
the  court-house,  and  if  his  cause  was  just — and  he  generally  engaged  in 
none  other — he  became  and  was  invincible.  He  would  resort  to  prac- 
tices which  today  might  seem  uncouth — he  would  harangue  a  jury  coat- 
less,  collarless,  with  a  prelude  of  a  horse-laugh — if  he  considered  it  neces- 
sary. He  would  issue  a  business  card  which  today  might  run  afoul  the 
scores  of  cannons  of  ethics  promulgated  upon  the  slightest  provocation — 
if  only  to  demonstrate  that  a  new  bar  association  had  come  into  being; 
he  would  plead  with  his  own  client  to  relent  over  his  own  victim,  defeated 
in  a  litigation  by  Lincoln  himself — when  the  victim  was  a  physical  cripple. 
He  would  make  a  tender  on  behalf  of  a  client  in  order  to  hold  a  defendant 
to  his  contract — with  funds  borrowed  from  a  bank  for  a  few  moments — 
money  which  neither  he  nor  his  client  had — he  practiced  law  like  a 
pioneer,  with  the  pioneer  ideas  of  fairness,  of  justice,  of  dealing  right. 
He  even  presided  in  place  of  Judge  Davis,  and  on  one  occasion  conducted 
an  entire  term  of  Court  in  Champaign  County. 

Those  who  are  fortunate  to  see  or  own  some  of  his  legal  documents 
will  see  that  the  same  hand  which  wrote  those  legal  forms  wrote  the 
Gettysburg  Address,  wrote  the  Second  Inaugural,  wrote  the  letter  to 
General  Hooker,  and  a  score  of  other  letters  and  documents  equally 
genuine,  equally  marvelous,  which  have  not  yet  come  into  their  own. 
The  same  man  was  big  enough  to  replace  the  young  sparrow  into  the  nest 
from  which  it  had  fallen  and  great  enough  to  guide  the  hand  of  Seward 
when  he  was  penning  the  epoch-making  Trent  despatch — or  pocket  his 
suggestions  to  embroil  us  in  a  world  war.  He  was  a  lawyer  in  a  class 
by  himself — all  alone — none  like  him  before  on  this  continent  since  the 
Genoese  sailor  first  saw  land  three  hundred  years  before — and  not  one 
like  him  since;  although  we  are  travelling  over  the  same  circuit,  all 
memorizing  his  arguments,  all  delving  into  the  wonders  of  his  spoken  and 
written  word.  He  has  no  followers.  His  race  is  run !  The  last  scion 
joined  the  sad-featured  father  less  than  a  year  ago.  Lincolns  in  the 
flesh  are  no  more.  Will  we  see  their  like  again  ?  Who  knows  ?  The  last 
great  world  conflagration  produced  no  Lincolns  at  a  time  when  they  were 
most  needed.  Our  own  times  have  no  Lincolns,  but  we  have  at  least  his 
heritage — but  have  we  the  eyes  to  see  it,  the  mind  to  grasp  it?  We  have, 
in  the  spirit,  if  not  in  the  flesh,  Lincoln  pleading  before  every  tribunal 


that  we  love  our  fellow-man,  that  we  do  not  act  adversely  to  our  brother, 
that  we  preserve  our  birthright,  that  we  hold  sacred  the  principles  for 
which  he  fought  and  fell  and  upon  which  our  government  rests  and  must 
rest  if  this  government  is  to  endure;  that  we  love  the  stranger;  that  we 
accord  to  all,  regardless  of  religion  and  color  and  station,  equal  protection 
before  the  law.  These  are  the  maxims  which  Lincoln  the  invisible, 
Lincoln  the  lawyer,  is  seeking  to  implant  in  every  heart,  in  every  soul 
which  claims  kinship  with  the  lawyer  from  Illinois  who  paid  with  his 
life  in  the  greatest  of  all  his  causes,  in  the  greatest  of  legal  battles  of  his 
great  career,  before  a  jury  of  twenty  millions,  before  an  audience  of  an 
infuriated  world,  who  were  lending  aid  and  comfort  to  our  enemies,  to 
secure  the  release  of  four  million  human  beings  from  the  grasp  of  eleven 
embattled  imperial  states.  A  country  lawyer,  indeed,  an  unvarnished 
practitioner,  to  be  sure — unpolished  pioneer  of  course ;  but  not  since  his 
great  prototype  four  thousand  years  ago — the  shepherd  from  the  Midian- 
itish  Desert — who  pleaded  at  the  Court  of  the  great  Pharaoh,  has  it 
seemed  meet  to  Him  who  guides  our  destinies,  to  release  from  His  inner 
circle  on  High  such  another  country  lawyer — Heavenly  Councilor,  Ambas- 
sador of  God — Lantern-bearer  of  a  blind  humanity — as  the  raw  youth  of 
Sangamon  County  who  studied  law  from  the  seared  and  yellow  pages 
of  the  battered  volume  of  Blackstone  bought  with  the  contents  of  an  old 
barrel — the  only  fortunate  transaction  in  the  luckless  venture  of  Berry 
and  Lincoln,  which  business  venture  came  near  wrecking  his  life.  The 
ways  of  the  Almighty  are  wondrous  indeed,  wonderful  past  understanding. 
Now  that  the  mists  and  clouds  which  surrounded  him  during  those 
terrifying  years  are  lifted  and  dispelled,  we  see  him  as  he  was — and  what 
were  apparent  clouds,  black  and  trembling,  was  Mont  Blanc  among  men. 
in  its  mighty  splendor,  the  eternal  sunshine  resting  on  its  head. 


UNIVERSITY  OF  ILLINOIS-URBANA 

973.7L63B6H44AB  C001 

ABRAHAM  LINCOLN,  THE  LEGAL  PHASE  OF  THE 


3  0112  031799411 


